Whether a service provider is a fiduciary under 29 U.S.C. § 1002(21)(A)(i) when it changes the rate of return on a product offered in an employee benefit plan, even though the plan's participants, by virtue of their freedom to withdraw from the product at any time, retain 'authority [and] control respecting management [and] disposition' of their assets

QUESTION PRESENTED A person is a “fiduciary” under ERISA to the extent that person “exercises any authority or control respecting management or disposition of [the] assets” of an ERISA-governed employee benefit plan. Petitioner offers a product that plan sponsors may choose to make available to plans’ participants. Every six months, petitioner adjusts the rate of return offered to participants who choose to put money into this product, and pre-announces the rate before it goes into effect. Plan sponsors that make this product available to participants agree that if they want to stop offering the product, they must either pay petitioner 5% of the assets allocated to it, or wait 12 months to remove all participants’ monies. Participants, however, can remove their money from the product without waiting or paying anything. As a result, though petitioner adjusts the rate every six months, it lacks the final say over whether any participant’s assets remain invested at any particular rate. The question presented is: Whether a service provider is a fiduciary under 29 U.S.C. § 1002(21)(A)(@) when it changes the rate of return on a product offered in an employee benefit plan, even though the plan’s participants, by virtue of their freedom to withdraw from the product at any time, retain “authority [and] control respecting management [and] disposition” of their assets. (i)